The Doctrine of Property Law and the Civil Code of the Republic of Lithuania
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Abstract
The legal regulation of private property in the present–day civil law of Lithuania has emerged under specific circumstances: Lithuania has regained its independence, the legal system and economy were in the process of reform, private property was sought to be established and proper conditions for the free market economy needed to be instituted.
Having undergone numerous changes in the beginning of the 20th century the modern Western European doctrine of property law appeared as the main and most important factor for the process of drafting the new Civil Code of Lithuania. However, traditionally the new Civil Code was largely influenced by the Russian legal doctrine that had a direct impact on the Lithuanian law. Apart from that, after the second World War, the Lithuanian law and doctrine of civil law were under an influence of the socialist ideology. Therefore, the application of the doctrine of property law for the new Civil Code of Lithuania was affected by stereotypical regulations established throughout the decades and due to this it was not sufficiently consistent.
Modern and traditional doctrines of civil law are intertwined within the framework of the norms of the new Civil Code. This poses certain difficulties for interpretation. Therefore, the present paper aims to disclose the historical and doctrinal conditions of interpretation of the subject matter of property law and the norms governing property relations. The key submission of this paper is that property law is an inalienable constitutional right and its essence and contents may not be disclosed by the so–called „triad” of the owner’s rights that is borrowed from the old civil code. The other issue is the unity of the property law and the market flow which forms the effective legal mechanism of civil law legal relations as well as the conditions to ensure the owner’s rights not only by traditional remedies determined by material law. The conclusion is drawn that in order to disclose the contents of the norms of property law and their interpretation it is imperative to resort not only to the Constitution of the Republic of Lithuania or other acts but also on the European Convention on human rights and fundamental freedoms and the practice of the European Court of Human Rights as well as on the modern doctrine of property law which treats property law and its subject matter much wider than it is conventional for the Lithuanian legal doctrine.
Having undergone numerous changes in the beginning of the 20th century the modern Western European doctrine of property law appeared as the main and most important factor for the process of drafting the new Civil Code of Lithuania. However, traditionally the new Civil Code was largely influenced by the Russian legal doctrine that had a direct impact on the Lithuanian law. Apart from that, after the second World War, the Lithuanian law and doctrine of civil law were under an influence of the socialist ideology. Therefore, the application of the doctrine of property law for the new Civil Code of Lithuania was affected by stereotypical regulations established throughout the decades and due to this it was not sufficiently consistent.
Modern and traditional doctrines of civil law are intertwined within the framework of the norms of the new Civil Code. This poses certain difficulties for interpretation. Therefore, the present paper aims to disclose the historical and doctrinal conditions of interpretation of the subject matter of property law and the norms governing property relations. The key submission of this paper is that property law is an inalienable constitutional right and its essence and contents may not be disclosed by the so–called „triad” of the owner’s rights that is borrowed from the old civil code. The other issue is the unity of the property law and the market flow which forms the effective legal mechanism of civil law legal relations as well as the conditions to ensure the owner’s rights not only by traditional remedies determined by material law. The conclusion is drawn that in order to disclose the contents of the norms of property law and their interpretation it is imperative to resort not only to the Constitution of the Republic of Lithuania or other acts but also on the European Convention on human rights and fundamental freedoms and the practice of the European Court of Human Rights as well as on the modern doctrine of property law which treats property law and its subject matter much wider than it is conventional for the Lithuanian legal doctrine.
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Please see Copyright and Licence Agreement for further details.
